Ontario court approves class-action by immigration detainees against federal government

The Ontario Superior Court of Justice has certified a class-action lawsuit against the federal government regarding the use of provincial jails for immigration detainees.

The suit represents 8,360 people who were detained in 87 provincial and territorial jails by the Canada Border Services Agency (CBSA) between 2016 and 2023.

In the decision issued Friday, the court rejected each of the 15 objections raised by the federal government's lawyers who were trying to stop the action from proceeding.

"Immigration detainees were incarcerated in provincial prisons and encountered the same conditions as criminal inmates, including co-mingling with violent offenders, use of restraints such as shackles and handcuffs, strip searches, and severe restrictions on contact and movement," wrote Justice Benjamin Glustein.

Foreign nationals and permanent residents detained by CBSA under the Immigration and Refugee Protection Act are not accused of a crime.

"According to Canadian and international law, immigration detention is administrative in nature and cannot be punitive," according to the class action.

"Nonetheless, the CBSA has a longstanding practice of detaining thousands of immigration detainees in provincial prisons through arrangements with provinces and territories. This practice violates the Charter rights of the detainees."

The federal government has not indicated if it will appeal the court's decision.

One of the plaintiffs representing the immigration detainees is Tyron Richard, originally from Grenada.

Richard spent 18 months in three different maximum security jails in Ontario from January 2015 to July 2016, even though he was not considered a danger. He was being held as a flight risk.

He said while in jail, he was subjected to dozens of strip searches.

"I was required to strip off my clothes, turn around, bend over, spread my buttocks, and undergo an inspection of my anus by a guard with a flashlight, and to undergo a visual inspection under and next to my genitals," Richard swore in his affidavit. "I would describe my life in prison as a living hell, where I cried almost every day."

Nor was he afforded any privacy from his cellmate or guards, Richard said.

"The toilet was open in the room right next to the door."